• Pimlico plumbers are workers: in the case of Pimlico Plumbers Ltd and anor v Smith the Court of Appeal decided that self-employed plumbers were workers and also employees under the extended definition of employment in the Equality Act 2010. This meant that the plumbers would acquire various employment rights such as the right to the national minimum wage, paid holiday, rest breaks and pension contributions, as well as whistleblowing and discrimination protections. This decision is relevant to all employers who engage independent contractors. It would be wise to take steps to review such relationships to ensure that the contractual documentation and labels used accurately reflect the reality of the relationship on the ground. You can read our full report on the decision here. Pimlico Plumbers' appeal is due to be heard by the Supreme Court on 20 and 21 February 2018.
  • Uber drivers are workers: in the case of Uber BV, Uber London Limited and Uber Britannia v Aslam & Ors the EAT upheld a previous Employment Tribunal decision that, when the Uber app is switched on, Uber drivers are workers for the purposes of their claims under the Employment Rights Act 1996, Working Time Regulations 1998 and National Minimum Wage Act 1998. The EAT found that the reality of the situation was that the drivers were incorporated into the Uber business of providing transportation services, subject to arrangements and controls that pointed away from their working in business on their own account in a direct contractual relationship with passengers each time they accepted a trip. The EAT also had no objection to the Tribunal's approach of requiring the drivers not only to be in the relevant territory, with the app switched on, but also “able and willing to accept assignments”, as that was consistent with Uber’s own description of a driver’s obligation when “on-duty”. So, although there may be a few gaps when the drivers did not have the Uber app switched on and were not workers, this was not fatal to the drivers' status as 'workers' when they did have the Uber app switched on. You can read our full report on the decision here. Uber has appealed the decision to the Court of Appeal. A hearing date has yet to be listed.
  • Deliveroo riders are genuinely self-employed and are not workers: in the case of Independent Workers' Union of Great Britain v RooFoods Limited t/a Deliveroo the Central Arbitration Committee (CAC) considered an application for statutory trade union recognition. In doing so, the CAC had to consider whether delivery riders engaged by Deliveroo were workers for the purposes of TULCRA 1992. If they were not, the application would fail. The CAC concluded that the riders were not workers on the basis that there was a genuine, almost unfettered right of substitution. This meant that there was no requirement to perform the work personally and the worker test had not been satisfied. This decision bucks the trend seen in cases involving employers such as Uber, Pimlico Plumbers, Addison Lee, Excel and CitySprint, where ostensibly self-employed individuals were found to be workers. It seems clear that the differentiating factor in this case was the presence of a genuine and largely unfettered right of substitution. Whilst this created other risks for Deliveroo, it meant that the personal service requirement had not been met. You can read our full report on the decision here. Separately, multiple Employment Tribunal claims predicated on the riders having worker status under the Employment Rights Act 1996 have been brought against Deliveroo. An Employment Tribunal hearing to determine the claimants' employment status will be held in 2018.
  • Recommendations on worker status from the Taylor Review on Working Practices: although not a Court of Tribunal decision, it's worth remembering that the recent Taylor Review of Modern Working Practices recommended that the Government prioritise replacing the existing worker status with a new status of "dependent contractor", which would carry with it a different threshold test. The Review recommended that much greater weight should be placed on the principle of control, than on the requirement for personal service. It went on to say that the absence of a requirement to work personally should not be an automatic barrier to accessing employment rights as a dependent contractor. The Review said this this would "make it harder for employers to hide behind substitution clauses". This recommended approach has been endorsed by the House of Commons Work and Pensions and Business, Energy and Industrial Strategy Select Committees in their joint report entitled "A framework for modern employment".